JUDGMENT N.K. Mehrotra, J.
1. The aforesaid two appeals have been preferred against the common judgment dated 4.12.1996 passed in Regular Misc. Case No. 110/70/94, Km. Luxmi alias Meethu v. Estate, connected with Regular Misc. Case No. 251/70/95, Smt. Mridula Raghuvanshi v. Estate of minor Km. Luxmi by which the learned District Judge, Bahraich, has appointed Smt. Mridula Raghuvanshi as guardian of person and property of the minor Km. Luxmi and has rejected the application of Udai Pratap Singh moved on behalf of minor daughter Km. Luxmi for grant of succession certificate in respect of the securities left by her mother late Smt. Mamta Singh.
2. The brief facts of the dispute between the parties is that Udai Pratap Singh was married with late Smt. Mamta Singh in the year 1988 and Km. Luxmi was born out of their wedlock. Smt. Mridula Raghuvanshi is the real sister of Smt. Mamta Singh and the maternal aunt of Km. Luxmi. Late Smt. Mamta Singh was a teacher in Diksha Vidyalaya. Chhawni Bazar. Bahraich, Her sister Smt. Mridula Raghuvanshi was also a teacher in the same college and both were residing in the same house in Bahraich along with minor. Udai Pratap Singh is also Government teacher posted in district Pauri Garhwal. Smt. Mridula Raghuvanshi is issueless and is residing separately from her husband Sri Onkar Singh. After the death of Smt. Mamta Singh, Udai Pratap Singh as natural father of minor Km. Luxmi moved for succession certificate in respect of the securities left by the mother of Km. Luxmi and Smt. Mridula Raghuvanshi moved an application for being appointed herself as guardian and manager of the person and property of Km. Luxmi contending that since her birth Km. Luxmi had been living under her care and caress and she as well as minor have developed great affection for each other. She owns a residential house in Bahraich. Smt. Mamta Singh was residing with her prior to her marriage with Udai Pratap Singh and after the marriage and birth of a child, Smt. Mamta Singh, Mridula Raghuvanshi and Km. Luxmi were living in the same house in Bahraich. Smt. Krishna Devi, the mother of Smt. Mamta Singh and Mridula Raghuvanshi has also been residing with them in the same house and is also assisting her in the nursing of the minor child Km. Luxmi. Uda) Pratap Singh is aged about 38 years and is likely to re-marry and is greedy about the property left by his wife Smt. Mamta Singh. Km. Luxmi is studying in 'Barrows Blue Bells Montessori School, Bahraich'. With these allegations she prayed for appointment of herself as guardian. This application was opposed by Udai Pratap Singh, the natural father of Km. Luxmi. The aforesaid facts were not denied by Udai Pratap Singh. He has stated that Smt, Mridula Raghuvanshi was having three other sisters. Out of four sisters, two have died and they were women of independent thinking. Smt. Mridula Raghuvanshi is also not living with her husband and she had tortured her husband mentally and physically. The other sister Smt, Manjuli could not live with her husband and died. The fourth sister is also litigating with her husband. He alleged that Smt. Mridula Raghuvanshi is a greedy lady and she got her sister Smt. Mamta Singh separated from him and got a will executed by her in her favour on 2.9.1993. Therefore, Smt. Mridula Raghuvanshi does not deserve to be appointed as guardian of the minor Km. Luxmi. He prayed that the succession certificate be issued in his favour as guardian of Km. Luxmi.
3. The learned District Judge after taking into consideration the entire evidence on record has given weight to the welfare of the minor child and has held that even though Udai Pratap Singh was the natural father but the welfare of the child is a paramount consideration in appointment of the guardian and, therefore, he gave preference to Smt. Mridula Raghuvanshi, the maternal aunt of minor Km. Luxmi to be appointed as guardian of person and property of daughter Km. Luxmi and rejected the application for issuing succession certificate in favour of Udai Pratap Singh as guardian of the minor. Smt. Mridula Raghuvanshi has moved an application under Section 10 of the Guardians and Wards Act, 1890.
4. Section 17(1) of the Guardians and Wards Act, 1890, provides that in appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. Sub-section (2) of Section 17 provides that in considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes. If any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. The parties are Hindus, therefore the provisions of the Hindu Minority and Guardianship Act, 1956, are also to be taken into consideration. Section 13 of the Hindu Minority and Guardianship Act, 1956, provides that in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. In view of Section 13, the consideration that father is not unfit to be guardian of his child is a consideration subordinate to the welfare of the minor and may be cast aside in a case, demanding the formal appointment of a guardian of a minor for his betterment and welfare. The case of Udai Pratap Singh is that he is father and natural guardian. So in his presence, no other one can be appointed as guardian of the minor. In my opinion, the legal right of natural guardian and welfare of the minor child, both are conflicting principles and in case of conflict, welfare of minor is the paramount consideration.
5. Now the question is why Udai Pratap Singh being father of the minor cannot be appointed as guardian. The learned trial court has discussed the evidence on record that Smt. Mridula Raghuvanshi has filed a photostat copy of the registered letter written by Udai Pratap Singh to his late wife Smt. Mamta Singh which is paper No. 13Ga on record of the lower court. A perusal of this letter indicates that the relation between late Smt. Mamta Singh and her husband Udai Pratap Singh had become strained so much so that he was thinking to separate permanently with her and had even warned her of the sever consequences if she happens to visit his house located in Haiderganj, Falzabad. Smt. Mridula Raghuvanshi has also filed a photostat copy of the application written by her late sister Smt. Mamta Singh to the Principal of her college Rajkiya Kanya Dlksha Vidyalaya, Bahralch, which is in the shape of a Will wherein she has stated that her condition severely deteriorated on 23.4.1992 and. therefore, she is expressing her last wish before her that till she is alive, she could be entitled to get the entire benefits arising out of her service but in case of her death, Km. Luxmi would remain in the guardianship of her elder sister Mridula Raghuvanshi till she attains majority and her elder sister would be manager of her properties.
6. The learned District Judge, after giving due consideration to the admitted facts that the minor girl had never lived in the company of her father and had been deprived of his affection as well as of her paternal grand-father and grand-mother. The learned trial court has also taken into consideration that Udai Pratap Singh is aged about 38 years and is posted in Pauri Garhwal, the minor girl is studying in district Bahraich in the care and caress of her maternal aunt Smt. Mridula Raghuvanshi who has no issue and is living separately from her husband. He has also considered the fact that Km. Luxmi is residing with Smt. Mridula Raghuvanshi since her birth, I find nothing on the record to show that since after the birth of Km. Luxmi, Udai Pratap Singh has done anything for Km. Luxmi. He has not spent even a single penny on the bringing up of his daughter. He has not been able to show how he had developed affection for the minor daughter when he has not met her daughter during the period of 15 years. In the last, the wish of deceased mother of Km. Luxmi is also a factor to be considered at the time of appointment of a guardian and the last wish of Smt. Mamta Singh, the mother of Km. Luxmi is on record which indicates that she desired that Smt. Mridula Raghuvanshi should be the guardian of her minor daughter after her death. Therefore, the arguments advanced by the learned counsel for the appellant that he being father, has the preferential right, has no force because in the case of conflict in the right of natural guardian and the welfare of the minor, the preference is to be given to the welfare of the minor.
7. Therefore, in view of the above, I find no force in either of the two appeals. The findings recorded by the learned District Judge are supported by the legal provisions and there is no force in either of the arguments advanced by the learned counsel for the appellant in both the appeals.
8. In result, both the appeals are dismissed.